District Attorney Raúl Torrez, left, and attorney Mark Baker announced Monday that a judge has banned the New Mexico Civil Guard from publicly acting as a military unit without authorization. (Roberto E. Rosales/Albuquerque Journal)

 

A state court judge in Albuquerque has outlawed the New Mexico Civil Guard from publicly acting as a military unit without authorization or assuming the role of law enforcement by using organized force at public protests or gatherings.

Granting a motion by Bernalillo County District Attorney Raúl Torrez, District Court Judge Elaine P. Lujan also banned such activity by the group’s directors, officers, agents, employees, members and any of their successor organizations and members.

Torrez, the Democratic candidate for state Attorney General in the Nov. 8 general election, said on Monday that the decision, “fundamentally represents a victory for the rule of law….We’re trying to prevent violent extremism.”

He faces Republican attorney general nominee Jeremy Gay in the upcoming election.

Torrez’s office was assisted by Albuquerque attorney Mark Baker and the Institute for Constitutional Advocacy and Protection at Georgetown University. Baker and the Institute worked for free over the past two years of litigation in the case.

An attorney listed in court records as representing the militia group didn’t immediately return a Journal request for comment on Monday.

The ruling is considered the first of its kind in the country because it relied on the DA’s enforcement authority, said Mary McCord, an attorney with the Institute, during a press conference Monday.

The lawsuit alleged members of the New Mexico Civil Guard violated state law by exercising or attempting to exercise the functions of a peace officer without authority and have organized and operated as a military unit without having been called to military service by the governor. The governor has exclusive authority under the Constitution to call on the militia to keep the public peace.

“As we continue to see more and more brazen actions taken by vigilante and private militia groups,” McCord said, “including the attack on the U.S. Capitol on Jan. 6, 2021, it’s all the more important to use these tools to establish that not only that this conduct is a danger to the public safety but it is also not constitutionally protected.”

“This is a case about conduct, not the content of any type of speech or association,” she added.

Clad in camouflage attire and sporting assault rifles and other military-style gear, members of the militia showed up at an Old Town protest June 15, 2020, contending their purpose was to protect a controversial statue of Spanish conquistador Juan de Oñate. Their heavily armed presence served to increase tensions at the protest, the lawsuit maintained, and one man not a member of the group was ultimately arrested for aggravated battery in connection with a protester who was shot and injured.

Torrez said at a press conference Monday that he subsequently learned the group was at other gatherings that summer and had been organizing “musters” to summon, organize and train members.

Though no one from the group was arrested on criminal charges, Torrez went to court to seek a civil injunction in July 2020.

Torrez said since the lawsuit, “this group has not appeared in an armed coordinated fashion at any public protest. And that’s exactly the outcome that we were looking for … a very clear understanding on their part, that engaging in that behavior would lead to consequences.”

As for copycats that may organize in the future, Torrez said, “I think the lesson to any other group of individuals, regardless of their ideology and political beliefs, is they should expect the same response from this office should they engage in armed and coordinated action of the type that was undertaken by the New Mexico Civil Guard.

“They will simply find themselves the subject of a lawsuit, which now has the force of having a district court judge in this district stating, unequivocally, this action does not violate the First Amendment. This action does not violate the Second Amendment and they are strictly prohibited from either assuming unlawful paramilitary (conduct) or policing.”

The judge in 2021 rejected the militia group’s arguments that the DA’s request for an injunction infringed on the group’s First Amendment right to free speech and association, and its Second Amendment right to bear arms. Lujan’s decision this month to grant the injunction effectively ended the case.

In her ruling, the judge also found the group violated a court order requiring they furnish someone from the group for a deposition.

At the deposition earlier this year, Bruce Leroy Spangler Provance, one of the founders of the group, which had more than 150 members at one time, admitted to destroying all records of the group and pouring bleach on his laptop and burning it.

Dressed in what appeared to be Civil War attire, Provance turned over a piece of a paperbag to attorney Baker that had a drawing of a devil in flames and a crude sexual drawing involving a figure labeled, “Your Mom.” Provance told Baker the drawings were intended “to make me smile while I had to look at you.” Then he abruptly left the deposition.

“The circumstances here clearly show a flagrant, willful, bad faith, callous disregard of the Court’s order,” the judge wrote in her Oct. 7 ruling. An attorney representing the militia group then withdrew from the case, she wrote, and the group didn’t retain a new lawyer until after a court deadline.

Torrez said he was motivated to seek an injuction against the militia group after reflecting on the history of democracies across the world and how, “countries start to devolve and democratic institutions start to fall apart because political extremism and political violence begins to take over.”

“So it’s important for us to state unequivocally that there is no tolerance for that behavior, regardless of your political ideology,” Torrez said Monday.